Criminal Justice

The Wisconsin Supreme Court has ruled that a dead woman’s earlier warnings that her husband may kill her can’t be used as evidence in his retrial for murder.

The Wisconsin Supreme Court ruled against prosecutors Thursday, report Courthouse News Service, the Associated Press and the Milwaukee Journal Sentinel.

The state supreme court ruled that subsequent decisions by the U.S. Supreme Court did not affect its prior decision that the statements couldn’t be used because they were testimonial in nature and not subject to cross-examination.

The decision means that prosecutors will have to retry Mark Jensen of Pleasant Prairie, Wisconsin, without communications from his late wife, Julie Jensen. She died in 1998 after she was poisoned with antifreeze.

Julie Jensen had made several statements before her death suggesting that, if she died, police should investigate her husband.

She left two voicemails with a police officer warning that if she was found dead, her husband should be the first suspect. She also wrote a warning letter that she gave to a neighbor with instructions to give it to police if anything happened to her.

The defense had argued that Julie Jensen took her own life in a manner that would focus suspicion on her husband. Prosecutors alleged that Mark Jensen had searched the internet to find ways to make a death look like a suicide, and he killed his wife to be with his mistress.

The Wisconsin Supreme Court’s earlier decision was partly based on Crawford v. Washington, a 2004 Supreme Court case considering when a hearsay statement by an unavailable witness can be used at trial. The Supreme Court held that such a statement is inadmissible under the confrontation clause if the statement is testimonial and the defendant had no prior chance to cross-examine the witness.

In the earlier decision, known as Jensen 1, the Wisconsin Supreme Court said the statements were inadmissible under Crawford, but a trial judge should consider whether the statements could be admitted under the forfeiture-by-wrongdoing doctrine.

That doctrine says a defendant forfeits their constitutional right to confront a witness when the defendant caused the witness’s unavailability. A trial judge found Julie Jensen’s statements admissible under that doctrine, and Mark Jensen was convicted of murder.

While Mark Jensen’s appeal was pending, the Supreme Court ruled in 2008 in Giles v. California that the forfeiture-by-wrongdoing doctrine applies only when the defendant caused a witness’s unavailability with the specific intent of preventing the witness from testifying. Federal courts vacated Jensen’s conviction.

Two other subsequent Supreme Court decisions addressed exceptions that allow admission of statements given to police to resolve an ongoing emergency and given to third parties. Prosecutors argued that those cases made Julie Jensen’s statements admissible at Mark Jensen’s retrial.

In its March 18 opinion by Justice Rebecca Frank Dallet, the Wisconsin Supreme Court said its confrontation clause analysis in Jensen 1 still applied, and Julie Jensen’s statements could not be used.

In a concurrence, Justice Jill J. Karofsky agreed that Jensen 1 was controlling but said the former opinion failed to consider the context in which Julie Jensen made her statements.

“Had this court in Jensen I truly considered that context, it would have recognized that Julie was undeniably a victim of domestic abuse and that prior to her death she lived in terror born of the unimaginable fear that her husband was going to kill her and claim that her death was a suicide,” Karofsky wrote in a concurrence joined one other judge.

Karofsky said if the state supreme court considered the domestic abuse in Jensen 1, it would have “possibly reached a different conclusion.”